Historians Are Not Legal Historians and So Many Leave Gaps No One Fills

By Nick Levinson

Conflict lies between lawyers and historians in judging old or foreign adjudications of guilt or liability.

Historians, even scholars and not just popular writers, will report that a court has found someone criminally guilty or not or civilly liable or not, but without analyzing the judgment’s reliability. Whether judicial procedure adequately protected the ability of the court to find the truth is elided, but procedure has evolved in part to protect the rights of the parties to participate in a reasonable effort to find the relevant facts. If new procedure is to be lauded for preserving the integrity of the court, old procedure is, by elimination, open to criticism for having formerly kept the court’s integrity weaker. Perhaps the old procedure was equal or better; but if we presume that procedural changes are generally to improve the reliability of decisions, and that is likely when societies demand more of their judiciaries and have the education and the means to do so, then procedure before the change on point has to be questioned.

Likewise, if a foreign jurisdiction is not reliable for its adjudications today, it probably should be considered (with exceptions) not reliable in the relevant past.

Substantive law is not this issue. If, somewhere, taxes were enacted and only later was nonpayment defined as a violation subject to enforcement, the legal change into enforceability is substantive. Changing whether a defendant can be required to testify about whether the tax due was paid is important but not substantive. It’s adjectival and evaluating it is probably beyond the skill of most historians.

When a promulgator, such as a court, promulgates a change, whether retroactivity is provided is not dispositive on whether the state before the change was less reliable for a conclusion reached. It may be relevant but perhaps was denied only to reduce the maintenance burden on the courts, which may otherwise be asked to reopen old cases, possibly disturbing law enforcers and society at large, although possibly benefiting both.

Lawyers and legal historians would at least recognize the reliability issue, even as they don’t always take the time to analyze the reliability of a case’s outcome, but general historians’ works are generally not read as underinformed by legal expertise but as if the highly-trained historians’ presentment of the judicial outcomes suffices for establishing for the reader the reliability of a verdict behind the scholar’s content.

Some would argue that courts are the agencies designated to figure out the facts and there isn’t a better system available, and therefore the outcomes have to be accepted. While the need for a system, the lack of a better way, and the need for acceptance is generally relatively true for a society at the time, the need for acceptance is less true for anyone looking later at a case, or a judicial system would never be recognized as needing to improve and urged to do so, leading to institutional lethargy that can degrade justice across society.

And some would argue that the reader or writer who is not expert has no authority to question a court’s act. However, inexpert concerns, while often erroneous, can lead to uncovering flaws that experts can then elucidate and address with possible remedies.

Sometimes, a notorious case is described in a way that leads readers to question how a court arrived at its conclusion and to dispute its validity. Most of the time, however, the verdict, once recorded, is treated as beyond question or as not worth the effort to question it.

Some offenses are well known to the public of the time and place as to their definitions even before commission. Generally, more of those offenses are committed than are admitted to by perpetrators prior to adjudication, so other means for detecting whodunit are necessary. That is why police and courts are central to the purpose, why courts are asked to arrive at a decision and try not to leave most cases undecided, and why courts are respected by their national contemporaries. If someone were to challenge most of their decisions, the burden might fall on the challenger to support challenging virtually on general principle, a burden that, for good reason, would be difficult to meet. Challenges on narrower grounds, whether individually case-centric or systemic for a case category, are still difficult to support but easier than challenging all of judicial practice. But usually a historian rarely challenges a court decision if it hadn’t been raised in a source relied upon by the historian. Original challenges raised in works of history are likely viewed as the province of legal historians, probably trained as attorneys and familiar with the specialized tools of research of that field.

This likely applies to more than law. Understandings of military strategy, nutrition, surgery, architecture, and botany probably suffer in the same general way. Even scholarly historians for the most part can provide only overviews. They don’t say so because that would undermine their reputations as highly intelligent, which would damage their careers, so, if you prefer that someone tell you when they don’t know something you’re asking about, you’re out of luck here.

Reader beware, because there’s not much else you can do about it.